Whatcom Sheriff: Law enforcement ‘severely limited’ by court’s drug possession ruling
The Washington Supreme Court on Thursday struck down the state’s felony drug possession law because — unlike the laws of every other state — it did not require prosecutors to prove someone knowingly or intentionally possessed drugs.
Under the ruling, law enforcement will no longer able to take enforcement action for people engaged in narcotics use or simple possession, Whatcom County Sheriff Bill Elfo said in a Facebook post, adding that means “investigative strategies, the ability to implement street diversion and get people into treatment have been severely limited.”
The Feb. 25 ruling came in the case of a Spokane woman who had received a pair of jeans from a friend that had a small bag of methamphetamine in a pocket.
Five justices, led by Justice Sheryl Gordon McCloud, said the state law was unconstitutional because it criminalized her passive, unknowing conduct, in violation of her due process protections. A letter carrier who unwittingly delivers a package of drugs, someone whose roommate hides drugs in a common living area, and someone who picks up the wrong bag at an airport could all be convicted under the law, she noted.
“Attaching the harsh penalties of felony conviction, lengthy imprisonment, stigma, and the many collateral consequences that accompany every felony drug conviction to entirely innocent and passive conduct exceeds the legislature’s powers,” Gordon McCloud wrote for the majority.
Elfo, meanwhile, wrote that while many people believe narcotics possession should be treated as a public health issue, rather than a criminal issue: “Drug offenses at all levels often lead to crimes of violence, property crime and public/neighborhood disorder.”
“The enforcement of laws prohibiting the possession of narcotics also lead to the identification of dealers, the disruption of organized criminal enterprises and treatment referrals for users and those possessing small quantities through the law enforcement assisted diversion program, drug court and other options,” Elfo wrote.
“This decision will eliminate incentives for the addicted to cooperate, seek treatment and stop the work of getting people who will not accept voluntary placement in a stabilization center, into a safe environment where they can receive detox and life-saving medical treatment.”
To those who say Thursday’s ruling will help limit jail populations, Elfo pointed to the 217 people currently in Whatcom County Jail — none of whom, he said, were solely incarcerated for simple possession of narcotics.
Thursday’s ruling
For more than six decades, the court had affirmed the Legislature’s power to criminalize drug possession without proof of a defendant’s intent to possess them. In a crucial decision from 1981, the court expressly noted that if lawmakers had wanted to require proof of intent, they would have made that an element of the crime.
Since then, the court had sought to ease the harshness of its earlier ruling by creating a defense of “unwitting possession”: A defendant would be acquitted if they could prove they had the drugs unwittingly.
But in Thursday’s decision, the majority found that approach inappropriate. Affirmative defenses can only be used to negate an element of a crime, and intent is not an element of Washington’s law, Gordon McCloud wrote.
Another justice, Debra Stephens, said it wasn’t necessary to find the law unconstitutional. Courts can find that intent to violate the law is an implied element of a crime even if not spelled out in law. She wrote that she would have overturned the earlier decisions that found Washington’s law did not require proof of intent.
Justice Raquel Montoya-Lewis, who formerly was a Whatcom County Superior Court Judge, signed with the majority, according to court records.
Three justices signed a dissent by Justice Charles Johnson, who said the Legislature had the authority to criminalize unknowing drug possession.
The defendant in the case, Shannon Blake, was arrested in 2016 as Spokane police searched a property for stolen vehicles. When she got to jail, a guard found the small bag of meth in the watch pocket of her jeans.
She testified that a friend had bought the jeans secondhand and had given them to her two days earlier, a story confirmed by her boyfriend. She didn’t know the drugs were in them, she said, and she and her boyfriend both testified that she never used meth.
A trial judge found that she had not met the burden for showing “unwitting possession,” and she was convicted.
The court majority stressed that it was not revoking the Legislature’s authority to criminalize other acts without proof of intent. The difference, it said, is that lawmakers may not criminalize unknowing, passive conduct — essentially, someone can’t commit a crime by doing nothing.
By contrast, it said, the state can continue to criminalize third-degree child rape, which requires prosecutors to show an older defendant had sexual relations with someone who is 14 to 16 years old — even if the defendant didn’t know the victim’s age — because the defendant actually took an action.
Staff writer David Rasbach and Gene Johnson of The Associated Press contributed to this story.
This story was originally published February 25, 2021 at 3:11 PM.